"Illegal and Unconstitutional:" What We Learned From The Third Jan. 6 Hearing : The NPR Politics Podcast The committee centered its third hearing around one person in particular: former Vice President Mike Pence, honing in on the pressure put on him by former President Trump to overturn the 2020 election. Republican Congresswoman Liz Cheney began the hearing by saying: "What the president wanted the vice president to do was not just wrong. It was illegal and unconstitutional." The hearing featured live testimony from two Pence legal advisors, Greg Jacob and retired fourth circuit judge Michael Luttig.

Read more: https://www.npr.org/1105513685

This episode: Voting correspondent Miles Parks, congressional reporter Claudia Grisales and senior political editor and correspondent Ron Elving.

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"Illegal and Unconstitutional:" What We Learned From The Third Jan. 6 Hearing

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Hey there. It's the NPR POLITICS PODCAST. I'm Miles Parks. I cover voting.

CLAUDIA GRISALES, BYLINE: I'm Claudia Grisales. I cover Congress.

RON ELVING, BYLINE: And I'm Ron Elving, editor-correspondent.

PARKS: This afternoon marked the third hearing from the House Select Committee investigating the attack on the U.S. Capitol on January 6. We heard from Greg Jacob, a lawyer who used to work for former Vice President Mike Pence, as well as J. Michael Luttig, a retired 4th Circuit judge who also advised Pence during the presidential transition period. The hearing opened with strong words from committee members, including Vice Chair Liz Cheney, Republican of Wyoming.


LIZ CHENEY: What the president wanted the vice president to do was not just wrong. It was illegal and unconstitutional.

PARKS: Much of today's hearing revolved around the legal theories that the Trump team relied on in the period after the 2020 election to try and overturn the election results. Specifically, it was around Trump's justification and his legal team's justification to get then-Vice President Mike Pence to step in and stop or delay the counting of Electoral College votes. In the testimony today, Pence's team made it clear that they felt like Pence did not have any legal standing to do that, which - I should note that at that time, after the 2020 election, that's the same opinion that basically the entire legal community also had. Here's attorney Greg Jacob.


GREG JACOB: No vice president in 230 years of history had ever claimed to have that kind of authority - hadn't claimed authority to reject electoral votes, had not claimed authority to return electoral votes back to the states, in the entire history of the United States not once had a joint session, ever returned electoral votes back to the states to be counted.

PARKS: This is in contrast, of course, with the constant public and private pressure from President Trump to do just that.


DONALD TRUMP: Pence comes through for us. I have to tell you. I hope that our great vice president comes through for us. He's a great guy. Of course, if he doesn't come through, I won't like him quite as much.

PARKS: That last piece of tape from a Trump rally in Georgia on January 4. So we've got a lot to unpack here. The hearing today was over two hours long. Claudia, can you just walk us through some of the highlights of the witness testimony we heard today?

GRISALES: They all really captured this dramatic splinter, this divide that came clear by January 6 in terms of Team Trump, in terms of lawyer John Eastman, who was advising for the former vice president to break out of his ceremonial constitutional role and certify the results last year, January 6, at the Capitol and what the panel would argue is commit illegal acts by trying to throw the election Trump's way instead. And so it was really palpable the anger that we heard in terms of what was taking place between Pence's team and Trump's team when it came down to the weeks before January 6, the day of and the fallout that followed.

PARKS: Yeah. And you mentioned John Eastman. His name came up a lot in today's hearing. This is the conservative lawyer who helped craft a lot of the legal theories that Trump was pushing in December and January after the election. Here's what Michael Luttig said about Eastman today.


MICHAEL LUTTIG: There was no basis in the Constitution or laws of the United States at all for the theory espoused by Mr. Eastman at all - none.

PARKS: Ron, tell us a little bit more about what we heard regarding Eastman today.

ELVING: Well, we should start by saying that he is not a stranger to Michael Luttig. He was actually a clerk for Michael Luttig on the 4th Circuit Court of Appeals in Chicago after he had graduated from the University of Chicago Law School. And he went on from that to be a law clerk for Clarence Thomas on the U.S. Supreme Court. Now, after that, he went out to California. He ran for office, ran for Congress, ran for statewide office, was unsuccessful in those efforts and wound up being a professor and later the dean of the Chapman University Law School. And that is in Orange, Calif. And he has also been an activist in the conservative movement, the Federalist Society and so forth and has been a prolific writer and somebody who was well-known in conservative circles.

PARKS: And what do we hear today about the role Eastman played, I guess, in crafting Trump's thinking about overturning the 2020 election results?

ELVING: Eastman had written some sort of provocative things, among other things, suggesting that Kamala Harris was not properly constitutionally qualified to be vice president because her parents were not permanent residents, not both of her parents at the time - she was born in Oakland, Calif. - things of that nature that were clearly wrong and widely discredited. And yet he would throw out these rather provocative things. And one of them was that it was in the power of the vice president to essentially supervise the counting of the electors in such a way that he could discredit some of those electors - so, you know, some controversy about that. And I've heard something about some alternative electors from Arizona or several other states. And so we're going to send that back to the states and let them straighten that out, all of which would have, of course, resulted in there being no winner. And the already determined Electoral College - as has already been said, that was a theory without any basis. And even his former mentor, Michael Luttig, was there today to denounce it in no uncertain terms.

GRISALES: We also learned from Greg Jacob that Vice President Pence told Trump again and again there was no legal basis for what Eastman was asking Pence to do. In fact, we heard Jacob say at one point this was the vice president's first instinct - was this was not constitutional to follow through with Trump's plan.

PARKS: Yeah. And there were some testimony today from other witnesses that seemed to indicate that Eastman himself, at different points, seemed not 100% to believe these same theories. Claudia, I want to talk a little bit about the threats to Mike Pence's safety at the U.S. Capitol on January 6. We knew that he had been ushered to a safe location when rioters stormed the Capitol. What new information did we learn today about exactly how much danger he and other members of Congress were in on that day?

GRISALES: Right. I think we learned that he was in not such a safe location. He was only 40 feet away. He had been ushered just a short distance from the chamber, from where these rioters had entered the chamber. They were looking for Mike Pence, as we've heard time and time again. They were chanting, hang Mike Pence. And so there was a clear mission here for many of the rioters to find him, for some to hurt him. At one point, we heard the California Democrat, Pete Aguilar, who sits on this committee and was largely leading today's hearing and the questions, talk about the threat that was faced to the vice president - that there were extremists who were there at the Capitol looking to kill him.


PETE AGUILAR: Make no mistake about the fact that the vice president's life was in danger. A recent court filing by the Department of Justice explains that a confidential informant from the Proud Boys told the FBI the Proud Boys would have killed Mike Pence if given a chance.

GRISALES: And so we got a better sense - a closer sense of how much danger he was in. We saw these images today we have not seen before of Pence in this office with his family. This includes the second lady. This includes his brother, Greg Pence, who is a House member from Indiana - all in this office. We could see a sense of concern there as they waited for these rioters to make their way through. And so it was a very scary situation. He was in a lot more danger than we realized.

PARKS: All right. We're going to take a quick break, and more on the hearing in just a moment.

And we're back. There was also news today, first reported by The Washington Post, regarding Ginni Thomas - who is the wife, of course, of Supreme Court Justice Clarence Thomas - that the January 6 committee has evidence that Thomas was in communication with Trump attorney John Eastman. Claudia, can you tell us the latest on this new storyline?

GRISALES: Right. Chairman Thompson told reporters after the hearing today that the committee has already issued a letter to Ginni Thomas, asking her to appear before the committee. This is raising an old issue for the panel. They had considered this back in March, Thompson told us - I'm going to tell the panel, let's get her in front of the committee - and then today, with this new reporting from The Washington Post that the panel has obtained new exchanges of emails between Thomas and John Eastman that they want to talk to her definitively this time. Thompson appeared surprised when he was told by reporters that Thomas already told The Daily Caller, another publication out here in the Washington, D.C., area, that she was looking forward to appearing before the panel.

PARKS: And Ron, why is this such a big deal - Thomas being in communication with somebody like Eastman during this time after the election?

ELVING: We don't know whether or not she had befriended or in any way or another knew John Eastman when he was one of her husband's clerks. That was some years ago, but it is certainly conceivable that she would have at least met him. And they do seem to have been, according to this reporting in The Washington Post, in some sort of communication at the same time that Ginni Thomas was talking to Mark Meadows on email - Mark Meadows, of course, being the president's chief of staff at the time - and that they were involved quite directly and aggressively in trying to overturn the results of the election at a time when cases were coming before the Supreme Court to attempt to do that same thing. And the court rebuffed them. There was an instance where Clarence Thomas was the only vote to say, let's not release that particular set of information. But apart from that, he was generally voting with his justice colleagues. But it is, nonetheless, an eyebrow-raising set of circumstances.

PARKS: Yeah. I want to zoom out a little bit here, Ron. Today's hearing, I would say, more than the first two hearings that we heard, got a little bit in the legal weeds, which I feel like, for me, as somebody who has thought as much as I have about the Electoral Count Act of 1887, it was awesome.

GRISALES: (Laughter).

PARKS: But maybe for the general public, there was a little bit more jargon, legal jargon, that kind of came up. I want to listen to Michael Luttig and hear what he said about what would have happened on January 6 had Mike Pence done what Trump was asking him to do and, you know, messed with the Electoral College votes being counted.


LUTTIG: That declaration of Donald Trump as the next president would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis.

PARKS: He went on to say in his closing statement that, quote, "Donald Trump and his allies and supporters are a clear and present danger to American democracy." What did you make of his and of the other attorney who spoke today, Jacob's, tone today?

ELVING: I was, I must say, taken aback that Michael Luttig would have gone this far and gone this far on national television. This is a man who, you must remember, is an icon to the conservative legal movement in the United States. He has been on the very short list for the Supreme Court - was perhaps the one on the shortlist of three or four that did not get the appointment under George W. Bush back in the first decade of this century and someone whose reputation could just not be more sterling. And that's why Mike Pence went to him. That's why people asked him what he thought of this idea. And that's why his absolute judgment on this and his complete lack of any interest in it whatsoever was so powerful to people like Mike Pence. For him to say that former President Trump and his supporters are carrying forward this same kind of scheme into 2024 is truly chilling.

PARKS: Claudia, I keep thinking about how much the committee is focusing on hearing from people who are in Trump's inner circle or, just more broadly, people who are bona fide conservatives. It feels like that is part of the strategy here in these open hearings.

GRISALES: Yeah. They're keeping up this strategy from the first hearing on, which is telling the story not through the panels' voices as much as they're doing it through members of Trump's inner circle. Today we heard from members of Pence's inner circle and the alarm - the extreme alarm that was driving through Pence's team as they saw Trump and his allies trying to undo the 2020 election.

PARKS: All right. That is a wrap for today. We'll be back tomorrow with our weekly roundup. I'm Miles Parks. I cover voting.

GRISALES: I'm Claudia Grisales. I cover Congress.

ELVING: And I'm Ron Elving, editor-correspondent.

PARKS: And thank you for listening to the NPR POLITICS PODCAST.


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